Late last month, a jury acquitted Steven Ficano on two felony charges, possession of marijuana and possession of marijuana with intent to sell. Ficano grows marijuana for medicinal use, and at the time of his arrest in 2012, he had both a medical marijuana license and a note from his doctor explaining the quantity of marijuana he was growing.

However, prosecutors argued that Ficano possessed more marijuana than he was legally authorized to possess for medical use. They further claimed that this meant he intended to sell some of that marijuana. The jury was unconvinced, and acquitted Ficano on both counts.

Jurors focused not just on the letter of the law and the facts of the case, but on their sympathy with Ficano’s illness. This suggests that jurors exercised their right to use their conscience to evaluate the justice of the charges rather than merely acting as finders of fact. In other words, they may have exercised the legal power of jury nullification.

Outside the courtroom, jurors said they focused on the doctor’s waiver, and said they didn’t think the document clearly defined how much pot Ficano could have at his home.

The waiver allowed him to possess 29 plants and 2 to 4 pounds of finished marijuana per three-month growing cycle. But Ficano said he only harvested marijuana once a year and assumed that he would be allowed to have up to 84 plants and 16 pounds of finished medicine.

Another juror, Donna Florence, said that after reaching the verdict she thought of her mother, who died of cancer about two years ago.

“If I could have gotten something for her that would have spared her that pain, I would have done anything,” she said. “And I think this guy was just in similar pain and trying to help himself.”

In last night’s episode of Freedom Feens, available for online listening here, Randy England spends some time discussing his experience with jury nullification from the prosecutor’s side of the courtroom. The jury nullification discussion comes up in the segment starting about an hour in, but there is extensive discussion of the recent Ross Ulbricht case before that, from which this topic develops.

One of these cases, England points out, led to a long-term change in the prosecutors’ office regarding what kind of cases the office chose to prosecute going forward. As a prosecutor, said England, “I didn’t care what the law said—you know, if something was against the law—if I thought that the community standards would not support it. I never filed a case that I didn’t think the community would convict on if I had to try it.” This power of prosecutor nullification is paralleled by jurors’ power of jury nullification, but prosecutor nullification is FAR more common than jury nullification.

This week the United States Supreme Court accepted for consideration the case of Foster v. Humphrey, regarding Georgia prosecutors’ use of peremptory challenges to strike every black juror in the jury pool in the defendant’s case. Then 18-year-old, black defendant Timothy Tyrone Foster went on to be convicted of the murder of a white woman by the resulting all-white jury, who subsequently also sentenced him to death.

Foster was convicted in 1987, just one year after the United States Supreme Court ruled in Batson v. Kentucky that:

Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

Defense counsel challenged the peremptory strikes used against black potential jurors under Batson v. Kentucky, and they were found by the court to reflect a prima facie showing of racial discrimination. Under the Batson ruling, the prosecution was then required to provide race-neutral explanations for each of the strikes, which it proceeded to do. The defense argued that the reasons given were pre-textual, but the court sided with the prosecution. Jurors subsequently convicted the defendant and, urged by the prosecutor to “deter other people out there in the projects”, sentenced him to death.

After the trial, the defense requested post-judgment discovery to preserve the State’s notes regarding jury selection to be used in appeal. This request was denied. However, decades later in 2006, the defense acquired the State’s notes regarding jury selection through Georgia’s Open Records Act and found new evidence in the prosecution’s notes that the defense argues support its claim of racial bias.

That evidence is reproduced in Foster’s petition for writ of certiorari and includes:
1. That the prosecution marked the name of each black prospective juror in green highlighter on four different copies of the jury list, and supplied a key in the notes specifically stating that green highlighting indicated black jurors.
2. That the prosecution circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors.
3. That the prosecution identified three black prospective jurors as “B#1”, “B#2”, and “B#3” in its notes.
4. That the prosecution’s investigator ranked the black prospective jurors against each other in case “it comes down to having to pick one of
the black jurors” and advised the prosecutor that “if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” Such language is crossed out in the notes acquired and was not submitted in the final affidavit to the court responding to the Batson challenge.
5. That the prosecution’s strike lists, failure to strike certain white jurors, and explanations for striking black jurors contradict the prosecution’s race-neutral explanations for striking the black prospective jurors.

Despite this new evidence that came to light nearly two decades after the trial, both the Georgia Superior Court and the Georgia Supreme Court declined to revisit the issue. Foster thereafter petitioned the United States Supreme Court for relief.

A jury is meant to be an independent body of individuals who represent a randomly-selected cross section of and the conscience of the community. The process of voir dire is not supposed to be used to “game” the jury, stacking it with individuals favorable to one side or the other, but rather is simply supposed to eliminate anyone with a true conflict of interest or inability to be a fair juror.

Throughout history, however, prosecutors have often been unfriendly not only to having blacks on juries, but also to other people of color, women, people of low income, intelligent or highly-educated people, those who are independent-minded and so on. In this short set of clips from a one-hour presentation, for example, former Philadelphia District Attorney Jack McMahon explains to new prosecutors how and why they should select jurors “that are as unfair and more likely to convict than anybody else in that room”:

When a person has been killed, it is understandable that the victim’s survivors and the rest of the community desire justice through the legal system be served quickly and decisively. However, when another person’s life is on the line as well, justice calls not simply for rushing to take revenge on whomever the prosecution puts forth by whatever path most expediently leads to that end. Justice requires that we afford the defendant due process, including a rational and just trial by jury on an equal basis with every other defendant.

Asset forfeiture is a process by which government officials seize—and often keep or sell for their own department’s profit—private property they allege was involved in a crime. The standard for such seizures is typically very low, such as mere “probable cause”, which is the standard that must be met merely to obtain a search warrant. Often the property owners need not have been convicted of, or even charged with, a crime, and the burden of proof that the property was NOT involved in a crime lies on them. Because of the extreme expense of going to court to get back such property stolen under color of law, many owners cannot afford to take action or would actually lose more money by doing so. Many either accept a fraction of their property back from the government in exchange for not pursuing legal action or simply lose it completely without due process.

Such an end run around our Constitutionally-guaranteed jury rights undermines the role of the jury in protecting individuals from being punished without due process of law. When we are accused of a crime, the founders intended that we must first be determined guilty through trial by jury before being punished, thereby placing our own neighbors as a protective barrier between us and government. It was intended that government must surmount that high hurdle before depriving us of life, liberty, or property. That, however, has been chipped away at throughout American history, by such tactics as limiting the right to trial by jury, coercing people into alternative court processes or plea bargains, and so on.

Civil asset forfeiture is another such tactic that erodes the protection of the jury. Instead of guilt or innocence being determined by a relatively objective jury representing the community, it is decided by government officials with no accountability and who often have a conflict of interest when their departments’ budgets depend on such “policing for profit”.

Moreover, losing access to one’s own assets makes it all the more difficult to defend oneself in court if criminal charges are involved. “By seizing the assets of a defendant before trial, a prosecutor can make it very difficult for a defendant to hire qualified counsel and make it to a jury trial,” points out Eapen Thampy, executive director of Americans for Forfeiture Reform.

“Defendants without access to qualified counsel must choose between an overworked and under-resourced public defender, defend themselves pro se, or accept a plea bargain from the prosecutor. In every scenario this allows the government to limit the ability of defendants to assert their rights, and prevent government misconduct from being examined during a public trial,” Thampy says.

Insult is added to injury when defendants are not only unable to access their own assets in their own defense, but have such funds used against them when they are channeled into their arrest and prosecution. According to the Institute for Justice when they issued the D+ grades, 100% of New Mexico’s and Montana’s asset forfeiture funds went back to law enforcement, including funding a substantial percentage of prosecutors’ salaries in Montana.

While the measures passed do not close the door entirely on policing for profit, they do make progress in restoring the role of the jury in protecting those accused from punishment without due process, including the ability of juries to protect private property by exercising jury nullification when a just verdict requires it.

This is shared for educational and informational purposes only; FIJA National is a strictly educational organization that does not endorse or oppose any legislation, citizens’ initiative, political candidate, or party.

Last week we reported news of a San Antonio trial that was temporarily halted as prosecutors appealed the judge’s decision to allow the jury to consider a lesser included offense of simple assault in a case that resulted in a death. In this case, an unnamed juvenile, who was being picked on at school reportedly warned those who were throwing things at him and otherwise bullying him to stop or he would retaliate. When the behavior continued, he waited outside his classroom and punched one of them twice when he emerged, knocking him unconscious. His classmate was hospitalized and ultimately pronounced brain dead.

In this case, prosecuting attorneys wanted the jury only to consider charges of murder, with a penalty of up to 40 years in prison, and manslaughter, with a penalty of up to 20 years in prison. The defense requested and the judge granted an additional instruction to the jury that allowed them to consider convicting the defendant of simple assault, which would have a greatly reduced penalty in comparison to the other two offenses. The trial was put on hold and the jurors sent home indefinitely while the prosecutor appealed this instruction to the Third Court of Appeals of Texas, who ruled on Friday, by 2-1 vote, in favor of including the simple assault instruction.

In the majority opinion, upholding the jury instructions, Justices Pemberton and Bourland noted that the instructions do not preclude the prosecution from pursuing the charges it considers most appropriate. They merely include another lesser charge, which in no way prevents the jury from convicting on the more serious charges. Justice Puryear dissented.

At this point, the trial could be continued, or alternatively, the prosecution may instead decide to seek relief from the Texas Supreme Court.

Defense attorney Joseph E. Garcia III said he was just glad they got a ruling.

“I was just wanting to get back in the court and let’s get this thing settled,” Garcia said. “I think they got it right.”

Jennifer Tharp, Comal County criminal district attorney, said Saturday she hadn’t decided whether to take the case to the Texas Supreme Court. She planned to work through the weekend and come up with a decision, Tharp said.

“While we were hoping for a different outcome on the Mandamus, our writ was an appropriate and necessary use of legal action as confirmed by the dissenting opinion of Justice Puryear,” she said. “The appellate court decided that the State does not have a right to appeal Judge Stephens’ ruling and failed to settle the issue we presented for review.

“We respectfully stand by our objection and intend to press forward as we carefully review all options available to protect the rights of the victim in this case and ensure the rule of law prevails throughout our community.”

Last month, a jury convicted Todd Stimson of multiple, victimless, marijuana-related offenses, in connection with his business The Blue Ridge Medical Cannabis Research Corp. that ran openly for years, complete with business licenses from and paying taxes to the government. There were many problems with the evidence in his trial including decomposed and moldy evidence, as well as evidence that was missing completely or appeared to have been tampered with.

Supporters had reportedly hoped for jury nullification in his trial, but his jury convicted him in just minutes. Retired attorney and activist Jen Foster reports that this cannot be properly interpreted as a rejection of jury nullification by the jury. Rather than pursuing a jury nullification strategy in court, the defense was banking on the condition of the evidence to result in an acquittal.

But, a nullification defense was never presented at trial. As things often go, there was a surprise. When the defense asked to produce the actual evidence allegedly seized in this case, giant garbage cans of decaying, rotting material were discovered. The courtroom had to be cleared and off-site inspection revealed that evidence had been repackaged and degraded. The SBI lab technician testified, in no uncertain terms, that she would have not accepted this evidence had it been presented to her in that state, and that it was not in that condition when it arrived at her lab.

Based on this turn of events, and after a motion to dismiss was denied, Stimson’s attorneys made a strategic decision to not present evidence, and seek a not guilty verdict immediately. They believed that the state had not presented sufficient evidence of the weight of 10 pounds required for the charges. This strategy backfired, however. The jury returned guilty verdicts on both counts in 40 minutes, finding the state had proved the existence of more than 10 pounds, despite the unrecognizable evidence.

Thus, contrary to his original trial plan, Stimson did not present a nullification defense: he did not make any arguments about medical cannabis, he did not present evidence about his business licenses, or vast amount of taxes paid, he did not testify and presented no witnesses as to the impact of this prosecution on himself and his family.

The trial of a San Antonio juvenile has been interrupted by an emergency stay just short of closing arguments, as the prosecutor and defense attorney take their dispute over jury instructions to an appeals court. An unnamed teen is being tried in connection with the death of a classmate. Witnesses in the casereportedly testified that the defendant was repeatedly picked on by fellow classmates who were throwing things at him and at other students. The defendant testified that he warned one of them that if he didn’t stop it, he was going to hit him back. When the behavior continued, the defendant apparently punched the classmate who had continued to throw things at him, knocking him unconscious. He was declared brain dead the next day.

Jurors sat through most of the trial before being sent home on Tuesday, with the trial indefinitely on hold, as the state appeals the instructions that will be read to the jury. At the time the appeal was mounted, the jury instructions reportedly allowed the jury to consider, in addition to the possibility of acquitting the defendant, the options of convicting the defendant of murder or manslaughter, as desired by the prosecutor. However, the defense and judge also want to include the option for the jury to convict on another lesser charge—misdemeanor assault, with a penalty of up to one year in jail and $4000 in fines. It is this lesser option to which the prosecution objects:

New Braunfels defense attorney Joseph E. Garcia III said he had planned to be ready Thursday morning to present his closing arguments in the Canyon High punching death trial, but that the emergency stay would leave the trial in limbo for now.

On Tuesday, Garcia requested jurors be given the option to consider misdemeanor assault along with the murder and manslaughter charges his 16-year-old juvenile client faces. Clayten Hearrell, a Comal County assistant district attorney, objected to the inclusion.

Judge Charles A. Stephens II denied the state’s request. So prosecutors decided to seek a decision from a higher court hoping to have the lesser-included offense removed from the jury’s instructions.

Prosecutor Clay Hearrell explained part of the reasoning for his objection:

“I wouldn’t have some quarrel if aggravated assault was included,” prosecutor Clay Hearrell told the judge in a bench conference just before jurors were sent home. “But misdemeanor assault is inconceivable in this fact circumstance. There’s no way to escape that a death occurred.”

Definitions for lesser included offenses vary, but the basic idea is that a lesser included offense is one that involves some, but not all, of the elements of a higher level offense. Instructing juries on lesser included offenses is somewhat up to judges to decide, except in capital cases. Per the 1980 ruling of the United States Supreme Court in Beck v. Alabama:

The unavailability of lesser included offense instructions and the apparently mandatory nature of the death penalty both interject irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the “third option” may encourage the jury to convict for an impermissible reason — its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death. While, in any particular case, these two extraneous factors may favor the defendant or the prosecution or may cancel each other out, in every case, they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Prosecutors have a great deal of power to influence the outcome of a case, simply by picking and choosing charges to level against the defendant. By stacking on extra charges, they can poison the jury’s view of the defendant by leading them to believe that with so many charges, he must be guilty of something! Stacking of charges or mixing of certain types of charges, such as mixing firearms and drug charges, can also bring mandatory minimum sentences into play, drastically raising the stakes in the case and psychologically strong-arming the defendant into accepting a plea bargain.

Plea bargains often involve defendants pleading guilty to a lesser offense or fewer charges than what he or she would face in court, in exchange for eliminating the risk of being convicted on much more serious—and therefore, more likely to involve more severe punishment—offenses. It is noteworthy that when prosecutors maintain near total control of the situation, they don’t seem to have much problem with lesser included offenses.

But beyond that, prosecutors can also manipulate the jury with their influence over jury instructions. For one thing, pre-filtering which charges the jury is allowed to consider usurps the jury’s authority as the trier of fact in the case at hand. Consider the 1895 case of Sparf and Hansen v. United States, which is usually noted for eroding the jury’s ability to nullify the law. In its decision, the Supreme Court ruled that “if there be no evidence upon which the jury can properly find the defendant guilty of an offense included in or less than the one charged, it is not error to instruct them that they cannot return a verdict of guilty of manslaughter, or of any offense less than the one charged”. This specifically calls for the judge to be the initial finder of fact in that he or she must first determine if there is or is not such evidence in order to instruct the jury regarding lesser included charges before they commence with their deliberations.

In a case where a prosecutor fears a jury may find reasonable doubt regarding some of the elements required to make the case for a very serious offense, he or she may wish to have lesser included offenses presented to the jury. That way, the odds of the jury convicting on at least something are increased. On the other hand, for particularly disturbing cases where a jury may be loathe to let the defendant off the hook entirely with an acquittal, a prosecutor may wish to keep lesser included charges off the table so that jurors feel pressured into convicting the accused of a more serious offense than is warranted rather than letting the accused go without any penalty whatsoever.

In their landmark book, The American Jury, Harry Kalven and Hans Zeisel asked judges presiding over jury trials to report the jury’s verdict in a specific case and compare it with the verdict the judge would have reached had the case been tried by judge alone. In 78% of the trials, judge and jury would have reached the same verdict. However, in the remaining 22% of cases, the jury’s sense of justice led it to a different verdict. Interestingly, these disagreements occurred almost always when the evidence in the case was close, suggesting that jurors bend the law or facts rather than ignore them entirely. The explanations for the disagreements constituted something of a casebook of jury law. For instance, juries had an expanded view of permissible self-defense that went beyond the bounds prescribed by law. Jurors sometime excused defendants if their victims played a contributory role.

Agents of the state who have a vested interest in the widespread criminalization and incarceration that their livelihoods depend on, have already dramatically eroded in many ways the jury’s traditional, legal authority to exercise jury nullification to deliver just verdicts. By taking lesser charges off the table, the state not only encroaches on the jury’s authority as finders of the facts in the case at hand—what is supposed to be a non-controversial function of the jury—but it can also lessen the chances that jurors will conscientiously acquit in certain types of cases.

In the wake of numerous, high-profile cases involving questionable police conduct, are jurors becoming more skeptical of testimony from law enforcement? Beth Hundsdorfer reports in the Belleville News-Democrat that jurors may be the case in St. Clair County, Illinois. St. Clair County is part of the Greater St. Louis metropolitan area, along with Ferguson, Missouri, which has been in the public spotlight most recently due to a Department of Justice report of its investigation of the Ferguson Police Department.

The conduct of police officers has been coming up in criminal trials for a long time, but after high-profile cases such as the shooting of a black youth by a white officer in Ferguson, Mo., or last week’s in South Carolina where an officer shot a man in the back, there can be a tendency by the public to question officers’ testimony, said Southern Illinois University Carbondale law professor Bill Schroeder.

“That’s the climate that’s out there right now,” Schroeder said.

Cosby was accused of the shooting death of Antwan Thomas outside an East St. Louis lounge. A St. Clair County jury acquitted Cosby in a trial after East St. Louis Detective Orlando Ward, the lead investigator in the case, was charged with federal drug-trafficking.

“I have been a lawyer for eight years, and the difference now is that jurors no longer give police officers the benefit of the doubt,” Cueto said. “I think jurors focus on the case they are deciding.”

Public defender and longtime defense lawyer John O’Gara agreed. He thought it may have begun with the O.J. Simpson murder case. During the televised trial, jurors sent out questions to Judge Lance Ito, asking and challenging evidence and witnesses. Those jurors were empowered and engaged, O’Gara said, leaving potential jurors around the country to expect the same.

“Jurors we are getting now are millennials. They tend to question things more, not take things at face value, not take the word of a police officer over anyone else,” O’Gara said.

Jurors should always keep in mind that the value they place on any testimony before them is entirely up to them. We know for a fact that many crime labs have perverse incentives to convict and that police misconduct is a common occurrence. Despite the appearance of authority, jurors are not obligated to give police officers’ or any other government officials’ testimony any special consideration or weight simply because it came from someone with a badge, a uniform, or a government title.

Both the Dallas News and the Texas Tribune recently called a Travis County, Texas grand jury on the carpet in their editorial sections for the grand jury’s public statement regarding a government official who was not indicted but had been censured by the state legislature. The 390th Grand Jury addressed a special report to Judge Julie Kocurek regarding its consideration of charges against University of Texas Regent Wallace L. Hall, Jr. containing scathing commentary regarding their views of his behavior

Based on the information we reviewed we are appalled at the Regent’s abusive and unaccountable behavior.

Hall used his positional power to the point of abuse. The over leveraging of his power resulted in lost talent, lowered morale, exposure of confidential student information, and unreasonable expenses.

The grand jury wrapped up its report with a recommendation that Regent Hall be removed from his position and for a number of changes to University of Texas Board of Regents policies and practices. Both the Dallas News and the Texas Tribune displayed their ignorance of the role of the grand jury and scolded them for supposedly stepping out of bounds.

In our legal system, a grand jury has a clear and simple mandate: Either indict someone based on probable cause or issue a “no bill.” Nowhere is a grand jury called upon to opine about someone under investigation or to dabble in governmental policy. Yet a Travis County grand jury seated to investigate University of Texas Regent Wallace Hall did just that. The grand jury found no evidence to indict Hall for his work uncovering an admissions scandal that led to the planned resignation of UT-Austin President Bill Powers. But jurors issued a report that smears Hall and makes it more difficult for regents to obtain public information, thus making it harder for them to do their jobs in overseeing the UT System. If this jury had stuck to its legal mission, we would have been better off.

Grand juries are the citizen panels that review the work of prosecutors and decide whether there is enough evidence to take someone to trial on criminal charges.

If the answer is yes, the grand jury issues an indictment, everybody who is not already lawyered up hires a lawyer, and they hold a trial to determine whether the person who was charged in the indictment is innocent or guilty.

If the answer is no, the grand jury issues a “no bill,” saying that the information jurors saw was too thin to justify criminal charges.

And then they’re supposed to shut up. In fact, there is a quaint, old-fashioned idea buried in all of this: In a perfect system — not to imply that there is such a thing — nobody is supposed to know that you were investigated if the result is something short of a charge.

Although government officials often treat modern grand juries as if they are there merely to sit down, shut up, and rubber stamp indictments assembly line-style, today’s mostly meek and obedient grand juries are a far cry from the independent and critical bodies they were in early America and before. “There is nothing new about grand juries issuing proclamations other than indictments and ‘no true bills.’ Such grand jury proclamations were were routine events in early America,” says Roger I. Roots, J.D., Ph.D., a member of FIJA’s Advisory Board.

In his book The Conviction Factory: The Collapse of America’s Criminal Courts, Dr. Roots documents the far more extensive role grand juries played in opposition to government abuses:

The actions of grand juries figured prominently in the beginnings of the American Revolution… A Philadelphia grand jury condemned the use of the tea tax to compensate British officials, encouraged a rejection of all British goods, and called for organization with other colonies to demand redress of grievances.

As tensions with the Parliament and the Crown increased, colonial grand juries encouraged individuals to support the effort of independence. “In some instances,” according to legal historians, “the calls to arms were sounded by the grand jurors themselves; in others, the sparks came from the patriotic oratory by the presiding judges in their charges to the grand jury.” The public proclamations of these grand juries were often circulated in local and national newspapers in an effort to “fuel the revolutionary fire.”

Thus was the grand jury enshrined in America’s constitutional criminal procedure. It was an antigovernment institution with power to confront, to stop and to denounce the state, its prosecutors and all its armies and officers.

What of the Texas Tribune‘s argument that if an indictment results in a No Bill, in a perfect system the public would not even know the accused had been under investigation? Keep in mind that the individual under investigation was no ordinary citizen, but a tax-paid government official being investigated for actions conducted under color of his public duties. Roots discusses in his book the now lost presentment power of grand juries:

A presentment is a grand jury communication to the public concerning the grand jury’s investigation. In early American common law, the presentment was a customary way for grand juries to express grievances against the government or to accuse public employees or officials of misconduct. A presentment was generally drafted from the knowledge and findings of the jurors themselves, rather than a prosecutor, and signed individually by each juror who agreed with it. A presentment stood public with or without approval of a prosecutor or court.

He further explains how the secrecy aspect of the grand jury has evolved over time from a protection of the power of the people to investigate government now to cover behind which government can hide its abuses from public scrutiny:

The application of grand jury secrecy in modern courts is fundamentally different from the way secrecy worked under the common law. When the Fifth Amendment grand jury secrecy clause was ratified in 1791, secrecy was a power of grand jurors—a right to investigate on their own in defiance of the state…

A review of American history reveals that grand juries of the Framers’ era were secret only in their taking of evidence (if the grand jurors so choose) and internal deliberations. An indicted defendant generally had a right to know the identities of those who testified, and in many jurisdictions, all bills issued by grand juries generally had to list the names of all witnesses who appeared on the face or the back of the bills. The public had wide access to grand juries and could scrutinize everything from their composition to their political biases. Thomas Jefferson wrote in 1793 that, “our judges are in the habit of printing their [grand jury] charges in all the newspapers.”…

While originally intended to serve the investigatory function of the grand jury, secrecy is now used to conceal from the public that which the government desires the public not see.

It is common for the press to fiercely defend the crucial role it plays in government accountability and its right to speak on controversial matters of interest to the public, as they properly should. Indeed, the Texas Tribune emphasizes in its report on its first five years its commitment to providing the public with more government transparency and government accountability.

“For five years we’ve delivered on our promise to cover public policy and politics with ambition and moxie — giving average citizens more reliable access to nonpartisan information, holding elected and appointed officials accountable and providing the greatest possible transparency into the inner workings of government,” said Texas Tribune CEO Evan Smith.

That makes it all the more disappointing to hear not one, but at least two media outlets essentially telling a grand jury to “sit down and shut up” rather than exercising one of its traditional and proper functions to expose corruption and abuse by a government official and call for him to be held accountable. Even if they are entirely ignorant of the history and purpose of the grand jury in American history, the media could at least support grand jurors’ supposedly First Amendment-guaranteed right to speak on an equal basis with their own.

Redkey and Beers were accused of violating California penal code section 409. Rather than dealing individually with less than a handful of unruly individuals present at the demonstration, police reportedly declared the assembly of hundreds of concerned citizens to be collectively unlawful based on the arrest of two people for vandalism and a scuffle between a protester and a camerawoman.

Deputy District Attorney Matt Mattis presented extensive evidence about three other events that day in Fullerton: the vandalism of the small business Slidebar, graffiti spray-painted on the police department, and the confrontation between a bandana-wearing protester and a member of the KCBS camera crew. The convicted perpetrators of those crimes were named throughout the trial. DA Mattis clearly stated defendants Redkey and Beers were never violent and never vandalized, but argued they were guilty of a crime for being present at a location that was declared to be an “unlawful assembly” and willfully remaining after the order was given.

The district attorney pointed out in closing arguments that he never mentioned the First Amendment because it was “not relevant” to this case. During the trial, defense attorney Derek Bercher described PM Beers as an “embedded” journalist providing an unfiltered view from ground level. Defense attorney John Raphling presented AJ Redkey’s style as “Comedy Central” instead of “Fox News or MSNBC” journalism.

By all accounts, neither Beers nor Redkey was involved in any of these incidents, nor was either arrested at the scene of the protest for failing to disperse. Rather, Beers was arrested for failing to disperse only hours later at an entirely different location from where she had allegedly failed to disperse. Redkey wasn’t arrested for failing to disperse until nearly four months later, on what just happened to be the day before another planned protest of unlawful arrests by Fullerton police. Six, apparently undercover, officers traveled all the way from Fullerton to Pasadena to apprehend him over an alleged non-violent offense committed weeks prior.

Ms. Beers recently discussed in an article entitled Why Innocent People Take Plea Bargains, her decision not to take a plea bargain and what allowed her that opportunity when most other people are coerced into forgoing their right to trial by jury:

You may be aware that I was recently on trial for failure to disperse [409 PC] from the Kelly Thomas murder verdict protest. I wasn’t sure if I had broken the law or not, but I was certain that I had done nothing unethical. The first plea deal we were offered was three years unsupervised probation, a fine, and community service. That was a ridiculous offer as I personally know people convicted of the same crime in Los Angeles who were found guilty in a court of law by a jury of 12 people and given a 50 dollar fine. I know of other people who were given the option of taking a class on the first amendment in exchange for the DA not filing charges.

Many criminal cases take over a year to resolve involving many days in court, delays and postponements. If a person has a job or is a student, this could lead to the loss of their job or failing of their classes. If I had a job where I had to be present to clock-in, I certainly wouldn’t be free to take so many days off whenever I was required to appear in court, let alone more than a week off for my trail by iteself. My co-defendant, AJ, was lucky to have such an awesome employment situation which let him have the days off he needed. If given a choice between loosing one’s job and taking a plea deal, most of us would not be privileged enough to face a jury trial due the state of our economy.

All but one juror favored finding the defendant AJ Redkey guilty of the misdemeanor offense. The jury similarly deadlocked 8-4 for PM Beers. The Orange County District Attorney’s (OCDA) office decided against dismissing the case and, in a gigantic waste of everybody’s time, will press for a retrial next month.

“The case is about the right to protest and whether or not the police can use the negative actions of a very few people in the crowd as an excuse to shut down the entire protest,” defense attorney John Raphling tells the Weekly. “Fullerton Police should have simply arrested the small handful of bad actors and respected the rights of the rest to speak out for justice.”

Round 2 is scheduled to start on April 17 at Orange County Superior Court in Fullerton.

The Youngstown Vindicator reports today that a jury has protected a defendant from charges of carrying a concealed weapon and being a felon in possession of a firearm for a .22-caliber semiautomatic pistol police found in one of twenty shoe boxes in a closet at a home of another person that the defendant was staying with. Defendant Gabriel Green had previously been convicted of two victimless violations, thereby making him legally ineligible to own or possess a firearm.

Police were serving a warrant at an address on the North Side for another person when they found a .22-caliber semiautomatic pistol in a shoe box in a closet.

They also found several rounds of ammunition in a basement.

According to Brevetta, Green admitted he had a gun he purchased at a gun show in 2005 and asked the officers at the home, “‘I’m not allowed to have a .22?’”

Engler told jurors his client denied making those statements to police, members of the Violent Crimes Task Force who were serving the warrant. Engler also said police took no fingerprint or DNA samples to link the gun to Green and that the gun was in one box out of 20 boxes.

He said prosecutors have to prove Green “knowingly” acquired a weapon, and they failed to do that. Engler said the home was not Green’s where the gun was found.

Fulton County Superior Court Judge Wendy Shoob recently took the all too uncommon but highly commendable step of informing jurors of the mandatory minimum punishment she would be forced to impose on the defendant if they convicted him of armed robbery. In this case, the defendant was facing a mandatory minimum sentence of life in prison without parole if convicted of armed robbery (with an air gun) because he had three prior felonies: one for possession of a screwdriver (yes, really), another for receiving stolen property, and a third for aggravated assault during a jail riot.

Judge Wendy Shoob said she has a right to express her opinion on mandatory sentences and had a duty to tell Fulton County Superior Court jurors that if they convicted a defendant of armed robbery, she’d have to sentence him to life.

As “the judge of the law and the facts under the Georgia Constitution,” wrote Shoob in a March 26 order denying prosecutors’ motions that she step off the case, “the jury should be informed when their verdict automatically imposes, by law, a mandatory sentence.”

Jurors in the case also considered, and ultimately convicted the defendant of, a lesser charge of robbery, for which Shoob sentenced him to 30 years, with 10 years in prison without the possibility of parole. District Attorney Paul Howard took issue with the fact that jurors had access to full knowledge of the consequences of their choice before making it and filed a motion for disqualification of the judge based on her instructions to the jury.

Michael Mears, Associate Professor at Atlanta’s John Marshall Law School, was also quoted in the same article, unfortunately spreading misinformation regarding the traditional, legal authority of the jury:

“Her rationale is very common-sense,” said Mears, who teaches criminal procedure and for years represented death row inmates. “But jurors are not supposed to be concerned with the sentence. That phrase that a jury is to judge ‘the law and the facts’ has been in our constitutions since the 1700s, but it’s never been determined to mean that jurors are supposed to decide the law. That’s jury nullification, and jurors can’t nullify a law they don’t like.”

Indeed, juries have been doing exactly what he says that can’t for hundreds of years now. In fact, it is quite possible that the jury in this case did as well, by convicting the defendant of a lesser charge. If so, what they did was perfectly legal and they cannot be punished for their verdict.

In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.

Shoob soundly denied District Attorney Howard’s request, making several strong points in support of jurors’ rights in her order including that:
—”The right of the Jury to consider mandatory sentencing is grounded in their role as the judges of the law and the facts under the Georgia Constitution,”
—”Jury power over sentencing was historically established under the Sixth Amendment as an intrinsic component of their function as a check on overreaching government,” and that
—”The jury has a right to be informed about mandatory sentencing in light of its intended role of political oversight.”

This Court holds that as the judge of the law and the facts under the Georgia Constitution, the jury should be informed when their verdict automatically imposes, by law, a mandatory sentence. The Sixth Amendment’s right to a jury trial was designed to provide the opportunity and power of the community to mediate punishment through the jury itself. Following the Supreme Court’s recent invalidation of statutory sentencing schemes eroding jury power, this Court is applying the same analysis to return to the jury the rights it was intended to have, and historically enjoyed, under the Constitution of the United States.

Criminal defense lawyer and FIJA Georgia State Contact Catherine Bernard praised Judge Shoob’s firm stance. “When jurors are deprived of basic information about the consequences of their decision, their role as the judges of the law and the facts is necessarily diminished. Judge Shoob has taken a courageous stand for justice and fairness in a system increasingly driven by prosecutorial discretion and other tools that undermine the fundamental right to trial by jury,” Bernard said.

When jurors regret their Guilty verdicts, one of the recurring themes we hear from them is that they had no idea that their vote would deliver the defendant, whose life was in their hands, up for an unjust punishment far beyond anything they had imagined. Many such cases involve mandatory minimum sentences that allow judges no discretion and essentially leave sentencing solely in the virtually unchecked control of prosecutors who are themselves fully informed about the consequences when they charge defendants.

We would NEVER hear a prosecutor in court excusing a drunk driver who had killed someone on the basis that the driver hadn’t considered the consequences of his actions when he chose to operate heavy machinery when he was unable to properly do so. Yet prosecutors regularly expect jurors to be complicit in destroying defendants’ lives by rendering a verdict without first considering the consequences of their actions. It is a poor reflection on our legal system that what is considered unacceptably irresponsible in virtually every other context is precisely the sort of behavior that prosecutors expect and even demand in court. It is, on the other hand, an encouraging glimmer of hope in such a cognitively dissonant environment to see a judge helping to readjust such expectations.

A big thank you to Joseph S. Diedrich for including jury nullification in his recent article on effecting change outside the law, published on the website of the Foundation for Economic Education! Read on for Joseph’s comments on juries.Effecting Change Outside the Law

A jury can convict you if it finds guilt beyond a reasonable doubt on every element of a charged offense. Stated differently, if all 12 jurors agree that there is legally sufficient evidence to find a defendant guilty, they can convict him.

But they don’t have to.

That’s because juries have the implicit power to nullify unjust laws. Even if there is enough evidence to find guilt beyond a reasonable doubt, a jury can still choose to acquit. Over time, repeated jury nullifications can lead to the de facto repeal of a law. On the eve of the Civil War, juries repeatedly practiced nullification in protest of the Fugitive Slave Act. For example, juries refused to convict runaway slaves in the Shadrach Rescue Cases, which the late Penn State York scholar Gary Collison credits with ruining Daniel Webster’s presidential aspirations.

However, the state does everything it can to prevent juries from exercising their right to judge the law itself in addition to the facts of the case. Judges have no obligation to inform jurors about their nullification powers, and they don’t. Defense attorneys are prohibited from informing jurors about nullification in the courtroom. Still, if a juror already understands the theory and legal status of jury nullification before entering the courtroom, he or she can be a powerful agent of social change.

Medical marijuana patient Jessie Teplicki turned down a plea bargain for 18 months probation after he was arrested for growing marijuana. Teplicki uses marijuana medicinally to treat his severe anorexia by stimulating his appetite and reducing nausea he experiences when eating. Teplicki argued a medical necessity defense to his jury, who found him Not Guilty after deliberating for just 30 minutes. The medical necessity defense in medical marijuana cases has been upheld in Florida in 1991 in Jenks v. State and again in 1998 in Sowell v. State Had he been convicted, Teplicki could have faced five years in prison for his victimless personal use of marijuana.

We start the week off with good news from Detroit, Michigan, where a jury has found an open carry advocate Not Guilty of carrying a concealed weapon due to wearing a coat that police found too puffy, a felony charge that could have put him in prison for five years over an entirely victimless allegation.

After Detroit police arrested 24-year-old Elijah Woody in September, officials said they had an open-and-shut case.

They claimed to have dash-cam footage that proved conclusively that Woody, who admits to regularly openly and legally carrying firearms, illegally had a handgun concealed in his waistband beneath a puffy coat on Sept. 13.

That evidence apparently wasn’t quite as conclusive in the eyes of a jury who found Woody not guilty of the felony carrying a concealed weapon charge Friday.

Elijah Woody is a member of a Detroit group called Hell’s Saints, who inform the public at large on their rights to keep and bear arms. In a strange twist, apparently the Detroit police decided they needed ten officers to have a chat with Hell’s Saints founder James Baker.

Baker, who is no relation to Woody, not his attorney and had yet to speak to him — at the time, Woody remained in the Wayne County Jail — said he was invited to a meeting with the chief that up to nine other officers attended.

Detroit Police spokesman Sgt. Michael Woody (no relation to Elijah Woody) said the intent was to “clear up” some discrepancies Baker was disseminating, including that the arrest was racially motivated, which he said was “furthest from the truth,” adding that all three arresting officers, as well as Elijah Woody, are black.

Baker viewed dash-cam video, audio and details of the arrest, he says.

Although Baker told MLive Detroit Thursday he felt the evidence was “inconclusive,” that’s not the impression Sgt. Woody said he had when the meeting ended.

Regardless of whether or not any of the jurors felt the firearm was hidden by the puffiness of the coat, the jury came to the right conclusion in acquitting Mr. Woody. None of the reports surrounding this incident indicate that he in any way harmed or threatened anyone else. Rather, officers chose to make an arrest and put him at risk of five years in jail time over what amounts to fashion policing, not to mention potentially losing his Second Amendment-protected rights that he obviously values. We, as jurors, have an obligation to uphold justice and to refuse to be complicit in such abuse. It is gratifying to see Woody’s jury protect him with their Not Guilty verdict from what some seem to have thought would be an easy conviction.